Mamata Banerjee calls for death penalty for rapists: What does India’s law say?

West Bengal chief minister Mamata Banerjee has vowed to bring a bill to the state Assembly to ensure capital punishment for rapists within seven days of the crime. Addressing the foundation day event of the West Bengal Trinamool Chhatra Parishad, the student wing of the Trinamool Congress (TMC), Banerjee said she will call a special session next week to introduce the anti-rape law.

“Next week, we will call an Assembly session and pass the Bill within 10 days. We will send this Bill to the Governor (CV Ananda Bose). If he doesn’t pass, we will sit outside Raj Bhavan. This Bill must be passed and he cannot evade accountability this time,” the Bengal CM was quoted as saying by News18.

Her remarks come in the wake of the brutal rape and murder of a young trainee doctor at the state-run RG Kar Medical College and Hospital in Kolkata on August 9. Banerjee, whose TMC government is facing flak over its handling of the case, previously said she would demand the death penalty for the culprits involved in the heinous crime. The prime accused, Sanjay Roy, has been arrested and the case is being probed by the Central Bureau of Investigation (CBI).

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With a reforms-first approach, GoWB will call for a special session next week to bring in a Bill demanding capital punishment for rapists!

Will @BJP4India dare to ask PM @narendramodi to push for this Bill like all those who are demanding justice? Or will they choose to… pic.twitter.com/3A3fh7nqZG

— All India Trinamool Congress (@AITCofficial) August 28, 2024

How have India’s rape laws evolved over the years? What is the current punishment for the crime? Let’s understand.

How India’s rape laws evolved

Rape was first defined in the Indian Penal Code (IPC) in 1860. Section 375 of the criminal code penalised sex by a man with a woman if it was done against her will or without her consent.

Sex with a girl under 18 years of age also came under rape. However, marital rape was not considered an offence.

Rape attracted a punishment of seven years of jail term to life imprisonment.

In 1972, the custodial rape of a young Adivasi girl named Mathura in Maharashtra triggered outrage across the country after the Supreme Court dropped the rape charges. The case led to amendments to the existing rape laws in India.

Section 114A was added to the Indian Evidence Act of 1872, which states that cases where “sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.” This applied to custodial rape cases.

The 2012 Nirbhaya gang rape and murder case in Delhi prompted stricter punishment for the offence. The Criminal Law (Amendment) Act passed in 2013 expanded the definition of rape and made punishment more stringent, as per The Hindu.

The Act increased jail sentences in most cases of sexual assault. It also called for capital punishment in rape cases that cause the death of the victim or leaves her in a vegetative state.

Gang rape was now punishable by 20 years to life imprisonment from the previous 10 years to life term.

The 2013 Act made stalking a criminal offence with up to three years in jail. The jail term for acid attacks was increased to 10 years.

Acts such as unwelcome physical contact, words or gestures, asking for sexual favours, showing pornography against the will of a woman or making sexual remarks were made punishable offences.

Using criminal force on a woman with intent to disrobe, voyeurism and stalking were also considered offences.

The rape laws were amended again following the abduction, rape and murder of an eight-year-old girl by several men near Kathua in Jammu and Kashmir in 2018.

The Criminal Law (Amendment) Act, 2018 introduced capital punishment for the rape of a girl under 12 years, with the minimum sentence in such cases being 20 years in jail. The rape of girls below 16 years of age would lead to imprisonment of 20 years to life term.

The minimum jail term for rape was also increased from seven to 10 years, as per The Hindu report.

What BNS says about rape

Last December, the Lok Sabha passed three Criminal Law Amendment Bills to replace the colonial-era IPC, the Code of Criminal Procedure (CrPC) and the Indian Evidence Act.

The Bharatiya Nyaya Sanhita (BNS), which took the place of the IPC, the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Act (BSA) came into effect on July 1.

The BNS defines rape under the section ‘Of offences against woman and children’. The punishment for rape, laid out under Section 64 of the new criminal law, is ten years in jail, which can be extended to life imprisonment.

The punishment for rape of girls under 16 years of age is the same as under the IPC.

Section 65 (2) of the BNS states, “Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death.”

The offence of rape that causes the death of the woman or leaves her in a persistent vegetative state is punishable by a minimum of 20 years in jail term or death penalty.

The punishment for gang rape remains the same. The death penalty has been provided for the gang rape of all minor girls under 18 years of age.

Under BNS, the age of consent for a married woman has been increased from 15 to 18 years. The new law also fails to criminalise marital rape.

One of the biggest criticisms of the BNS is that does not punish the rape of men and transgender persons.

Section 377 of the IPC dealt with the rape of a man, transgender person or an animal but the provision or a similar one is absent in the BNS .

“With the removal of Section 377 from the BNS, and no alternative law in place, men or transgender persons will not have that legal protection against rape,” advocate Karuna Nundy told The Hindu in June.

Section 18 of the Transgender Bill pertains to sexual abuse with the jail term ranging from six months to two years. This is far less than the punishment for the offence under Section 377 of the IPC which included a jail term of 10 years to life imprisonment.

Section 96 of the BNS uses the word ‘child’ to cover the offence of sexual exploitation of people below 18 years of age, making the law gender-neutral.

Why rape laws don’t curb crimes

Despite robust laws, India has failed to prevent crimes against women. A pervasive rape culture and misogyny plagues the country. The Kolkata case further highlighted how just making anti-rape laws is not enough.

As Vrinda Shukla, an IPS officer serving as SP Bahraich, Uttar Pradesh, wrote for Indian Express, “Men’s brutalising of women continues to be rampant because of the laxity in laws surrounding other equally heinous crimes,” such as dowry, domestic violence, stalking and harassment.

The ease of bail in “lesser” offences against women is also problematic. “The lax bail norms pose a serious impediment to correcting and curbing the criminal instincts of the accused before they graduate to committing bigger crimes,” she wrote.

“There is a crying need to develop a criminal justice system equipped to investigate and try cases of crimes against women in a fast-track mode. Where protracted trials remain a stubborn challenge, a long enough incarceration, depending on the severity of the particular crime, is the only available tool to instil a fear of the law,” Shukla wrote in the piece.

With input from agencies